Constitutional Amendment on Emergency Review of Executive Action

Grosseschnauzer

Grosseschnauzer

TNPer
A Constitutional Amendment concerning emergency review of Executive action:

That a new paragraph 4 be added to Section 2 of Article IV of the Constitution of The North Pacific, as follows:

4. At the request of either (a) any two four members of the Regional Assembly who do not currently hold any the elected offices of Vice Delegate or as a Justice of the Court, or (b) of the Speaker, or an the Assembly member then acting as the presiding officer of the Assembly in the absence of the Speaker, a presiding judicial officer may issue an emergency order enjoining an actual or intended Executive action pending prompt further proceedings before the Court. A majority of the three-member panel of the Court may thereafter temporarily enjoin an actual or intended Executive action pending final disposition of the matter either by the Court, or otherwise by an expedited vote of the Regional Assembly within parameters proposed in the requested by the Speaker or members of the Regional Assembly as set by a Court order under such terms as deemed appropriate under Clause 11 of the Bill of Rights.

edited with changes 27 December 2010
 
The purpose of this proposal is simple. It clarifies a procedure that can be followed when in the view of the Speaker, or members of the Regional Assembly, an actual or intended Executive action (i.e., by the Delegate or any official appointed by the Delegate) requires immediate review and consideration either by the Court or the Regional Assembly.
There are two elements in the "freezing" of the questioned action. An immediate, initial order by any justice or judicial hearing officer to allow the Court to make a determination as to whether to "freeze" the actual or intended action for a longer period of time so that either the Court or the Regional Assembly may act on the matter. The opening clause makes clear that it is the Speaker, or the members of the Regional Assembly who decides what course of action is sought, and what parameters ought to be adopted by the Court to permit an expedited consideration in the Regional Assembly.

This represents the sort of "emergency" action that Clause 11 of the Bill of Rights has always contemplated, although the actual governmental entity with such authority could vary from time to time.
 
Two members seems a low number - you can always get two members who will want to complain, and we could easily find ourselves in a constant period of judicial review.

I also feel that the clause "joining an actual or intended Executive action " is too loosely worded. Under what circumstances would a couple of players be able to call on the courts? What actions are covered here?
 
The power to "enjoin" isn't the same as doing it. Everything is going to be dependent on the actual circumstances, and complaining per se isn't one of them. There's no way of anticipating exact what circumstances create an emergency, this proposal seeks to create a process to address an emergency whenever there is something that may seem to be an emergency. The judiciary has the power to say "no, not sufficient," Keep in mind that the judiciary is primarily a gate keeper, the final decision would usually be in the R.A., unless the dispute is primarily one of constitutionality rather than emergency.
Two isn't a final number, but I didn't want to start with too high a number, and I do not want to limit it just to the Speaker or who ever is presiding at the time.
 
This throws a lot of weight into the courts as members of the RA can also be justices. So, does this mean that two justices, a majority of the court, could evoke this clause and rule on the stop-action almost simultaneously? Would it be better balanced to say that the two evoking RA members may not be members of the judiciary?
 
It isn't my intent to include any members of the RA elected to an office, this is a draft after all, and I'm trying to focus on the process.
 
Understood. . . it was just something that jumped out to me and wanted to bounce it off you. I think it's needed too. Do you want to restrict it from all elected officials? Wouldn't this also include the Speaker then - and would this hamstring his purposes for being present at cabinet meetings? Just spinning out ?'s. . .
 
The Speaker or whoever might have his authority needs to be able to trigger the provision; but I do not want it limited to just whoever that might be; thus, the second prong of "X" number of RA members.
I don't want the number to be too high, either; it isn't fair to the Court to assume that they can't tell the difference between the legitimate and the inappropriate use of the injunction power, or how to address a particular set of circumstances. (And Justices can be recalled for abuse of power, although the likelihood of showing that might be more difficult than for the other offices due to the unavoidable necessity of judicial discretion.)
 
Changes per discussion made. We'll have to figure out how to deal with the Attorney General by statute, since although it is elected, it is an office created by a statute, not in the Constitution.
 
Would the AG need to be included? If a criminal action has occurred, could that not follow normal procedures. If a formal complaint needs to be filed, wouldn't a simple note from either the Speaker, following a decision by the RA or from the CJ, in regards to a majority judiciary finding? Unless, of course, if the AG is implicated in the criminal action. . . Ah, just screen-thinking again. . .
 
Here, the issue is that the AG is elected, but like the Speaker they may have information that may require the Court and the RA to act in some immediate fashion. The AG is the only elected office created by a law, so that is why the question has to be raised.
 
So, for my own clarity, you believe that a clause needs to be added in the Laws that gives the AG equal standing as the Speaker in regards to this issue, wherein the AG can solely notify and trigger a judicial review, and only a judicial review, as the AG has no constitutional authority to bring a stop-action motion to vote in the RA. Am I completely off base with your thinking here?

Is this necessary in the eventuality that the Speaker can not or will not act?
 
I think its logical that the AG also have the ability to act under this provision in some form. My concern for the moment is the constitutional language, which would not need to refer to the AG, but we need to be careful about how we describe the "elected" officials who would not be among those members of the R.A. who could trigger this provision.
The current constitutional language, in a sense, makes any means of addressing the AG in this process awkward because the AG is not a constitutional office, but it is a position that is elected.

That's what I am trying to sort out here. I can see precluding the other elected officials from the R.A. branch of the persons who can trigger this process, but I am not sure that lumping in the AG is the best approach because of the AG's responsibilities and how that might tie into any given set of circumstances under this provision.

It's tricky, and I want to make sure we don't exclude the AG from being able to initiate this procedure. Since the AG is not mentioned in the Constitution, it makes no sense to do so in this amendment to the Constitution; but we do need to make sure we have something added to the Law concerning the AG in this context, and make sure the language in the amendment does not contradict a change in the Law creating the AG's office.
 
I think I've worked out how to address the Constitutional language and have edited the proposal in the first post to reflect the solution.
With the changes, the proposed paragraph to be added to the Constitution would read as follows:

A Constitutional Amendment concerning emergency review of Executive action:

That a new paragraph 4 be added to Section 2 of Article IV of the Constitution of The North Pacific, as follows:

4. At the request of either (a) any four members of the Regional Assembly who do not currently hold the elected offices of Vice Delegate or as a Justice of the Court, or (b) of the Speaker, or an Assembly member then acting as the presiding officer of the Assembly in the absence of the Speaker, a presiding judicial officer may issue an emergency order enjoining an actual or intended Executive action pending prompt further proceedings before the Court. A majority of the three-member panel of the Court may thereafter temporarily enjoin an actual or intended Executive action pending final disposition of the matter either by the Court, or otherwise by an expedited vote of the Regional Assembly within parameters proposed in the request by the Speaker or members of the Regional Assembly as set by a Court order under such terms as deemed appropriate under Clause 11 of the Bill of Rights.

We still need a statutory change in the Law governing the Office of the Attorney General (Law 31). It also needs some cleaning up so we may want to separate it out for a separate discussion thread and a separate vote. In the meantime, here's a draft of the changes to Law 31:
Amendments to TNP LAW 31 on the office of Attorney General

To better serve the region as Chief Prosecutor to prosecute any abuse of power to the fullest extent, the Regional Assembly declares the office of Attorney General be an elected office, to be elected at the same time as the Justices of the Court of The North Pacific in the manner provided by Section Two of Law 26.

Section 1:
1) To serve as Attorney General, one must be a member of the Regional Assembly for thirty consecutive days prior to candidacy.
2) One must not have been convicted of any prior charge.

Section 2:
1) The Attorney General is to serve as Chief Prosecutor to all cases brought before the Court of the North Pacific.
2) The Attorney General is to work within the rules adopted by the Court.
3) The Attorney General shall serve for six months.

Section 3:
1) Should the position for the Attorney General become vacant for any reason, the Chief Justice shall name a replacement for the interim until a special election is held under Section Three of Law 26, or until the next regular judicial election.
2) A three day nomination process shall begin immediately after a vacancy, followed by a seven day voting period to elect a new Attorney General for the remainder of the term.
3) It is the duty of the AG to complete any trial they are prosecuting- should the original AG be disposed, then the interim shall complete the current proceedings. Should the interim AG also be disposed, the elected replacement shall complete the proceedings It is the duty of the Attorney General to see to completion any proceeding they are prosecuting. If for any reason, should the original Attorney General be unable to complete a pending case, then the interim or elected successor Attorney General shall take over as prosecutor and complete the pending proceedings.
3) Consistent with paragraph 4 of Section 2 of Article IV of the Constitution, the Attorney General may request a presiding judicial officer to issue an emergency order enjoining an actual or intended Executive action pending prompt further proceedings before the Court. A majority of the three-member panel of the Court may thereafter temporarily enjoin an actual or intended Executive action pending final disposition of the matter either by the Court, or otherwise by an expedited vote of the Regional Assembly within parameters proposed in the request by the Attorney General as set by a Court order under such terms as deemed appropriate under Clause 11 of the Bill of Rights.
Section 4:
1) This law will take effect during the next judicial election cycle, pursuant to Law 26.
Click to expand...
 
I would like to request that these two proposals (the Constitutional Amendment and the revision to Law 31) be advanced to formal discussion.
 
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